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Case Closed, but what about the Execution of the Judgment? The closure of Anchugov and Gladkov v. Russia

Published on October 30, 2019        Author:  and

 

 

In the beginning of October, EJIL: Talk! published a series of posts (here and here) by George Stafford, one of the co-directors of the European Implementation Network, who raised alarm about the status of execution of judgments of the European Court of Human Rights (the ECtHR). Based on the available statistical data, George argued that the problem of non-execution is “far more widespread than many believe.” Our post continues to address the important issue of the execution of judgments of the ECtHR by focusing on a specific case, namely Anchugov and Gladkov v. Russia – a 2013 judgment concerning the disenfranchisement of prisoners in Russia. 

On September 25th, the Committee of Ministers (the CM) of the Council of Europe, which pursuant to Article 46(2) of the European Convention on Human Rights (the ECHR or the Convention) supervises the execution of judgments of the ECtHR, adopted a final resolution CM/ResDH(2019)240, which closed the supervision of Anchugov and Gladkov v. Russia. The closure of the case means that Russia has complied with Anchugov and Gladkov judgment, as per assessment of the CM.

Anchugov and Gladkov became a test case for the Russian Constitutional Court (the RCC) under the domestic mechanism introduced in 2015, which permitted the Russian authorities to refuse the execution of judgments of the ECtHR on the basis of the RCC’s assessment of non-compliance of such judgments with the Russian Constitution. The RCC’s 2016 ruling of 19 April 2016 finding that the execution of Anchugov and Gladkov judgment was “(im)possible” provoked strong criticism from legal scholars and became a symbol of Russia’s resistance to the authority of the ECtHR. Read the rest of this entry…

 

Is the UN Violating International Labour Standards?

Published on October 29, 2019        Author: 

The recent controversy regarding UNOPS consultants in Geneva has triggered a much larger and long-overdue debate on the use of ´non-staff personnel´ in the UN system and the asymmetries in their working conditions with respect to UN staff.

On 2012, the United Nations’ Joint Inspection Unit (JIU) published a report on a survey aimed at assessing the practices of individual consultancies and other non-staff personnel in the UN System, including various specialized agencies. The investigation revealed that use of non-staff personnel in the UN amounts to approximately 40 percent of its total workforce. One of the key reasons for the use of non-staff personnel, according to the report, is the lack of sufficient resources to pay for a staff position in conjunction with the strain of having to deliver with scarce funding. A further 2014 report specified another reason to hire non-staff personnel: greater flexibility in the recruitment process in comparison to staff recruitment. In spite of numerous recommendations made by the JIU to UN agencies, regarding contracting practices, no real progress has been made to address the aforementioned issues and solve them.

Consultants in the UN, generally maintain a contractual relationship with a UN Agency but are not considered formal ’employees’. While the use of consultants does not appear prima facie to be a breach of human rights standards on labour, I argue in this post, that the manner in which consultancy contracts are being implemented by the UN is inconsistent with the ‘equal pay for equal work’ principle.

UN Consultancy Schemes and the ‘Equal Pay for Equal Work’ Principle

Article 7 of the ICESCR stipulates that members of the Convention should guarantee fair wages and equal remuneration for work of equal value “without distinction of any kind”. As for the scope of the term “remuneration”, in the ICESCR drafting sessions there was a general consensus that the term comprises other benefits “beyond monetary wages” such as social security, family and child benefits, as was later established in the ILO Convention 100. Therefore the ‘equal pay for equal work’ principle not only involves a monthly salary but it also includes other social benefits. Read the rest of this entry…

 

Turkey’s Military Operation in Syria: A Freedom of Expression Perspective

Published on October 28, 2019        Author: 

There is no doubt that Turkey’s use of force in Syria and the unfolding consequences thereof should generate much legal debate and analysis. The legal issues are broad. They cover primary norms under international law on the use of force, international humanitarian law, international human rights law and international refugee law. In addition, the relationship between the Turkish Armed Forces and Free Syria Army (or Syria National Army as recently renamed in Turkey) engages questions of attribution alongside individual criminal responsibility under international law. Alongside this long list of issues of engaging the state responsibility of Turkey, we can certainly ask whether any third-state responsibility is engaged and whether other states have been facilitating acts, which would have been unlawful if they carried them out themselves.

Some of these issues have been addressed on EJIL Talk!  here and here, and, elsewhere, here and here. Some have generated responses and counter claims here and here. My aim here is to highlight one, as yet, unaddressed aspect — freedom of expression and, academic freedom as a lex specialis of freedom of expression.

Discussions about Turkey’s military actions on international law blogs thus far have not been written by Turkish international lawyers, with one exception: a reply to a post on EJIL Talk! defending Turkey’s justifications for the lawfulness of the use of force under ius ad bellum.  My hunt for academic seminars held on these issues at any university in Turkey has drawn only blanks. Not one single academic seminar, not one single debate has been held to discuss multilayered legal issues around a major military operation. This is curious. Why do Turkish international lawyers not partake in the opportunity to debate and discuss international law in real time, and use their linguistic advantage to access key sources?

Read the rest of this entry…

 

Announcements: ASIL International Organizations Interest Group Roundtable; Graduate Institute of International and Development Studies LLM

Published on October 27, 2019        Author: 
1. ASIL International Organizations Interest Group IO Law Roundtable: Perspectives on UN Partnerships. On Thursday 7 November 2019, the ASIL International Organizations Interest Group (IOIG) will launch an initiative to engage legal staff of international organizations with the Society. As an inaugural event, the IOIG is convening a lunchtime panel (1.15-2.245pm) entitled “IO Law Roundtable: Perspectives on UN Partnerships”. Staff from the legal offices of UNICEF and UNDP, as well as panellists from the UN Office for Partnerships and the Academic Council on the United Nations System (ACUNS) will discuss various legal aspects of partnering with the private sector, financial institutions and academia to attain UN goals. The panel will be moderated by Prof. Sean Murphy, ASIL President and member of the International Law Commission. It will be kindly hosted by the Permanent Mission of the Kingdom of the Netherlands to the United Nations, located at 666 Third Ave, New York NY. The event is free but space is limited and registration is required: please RSVP here. For more information and future events, join the ASIL IOIG.  
 
2. Graduate Institute of International and Development Studies, LL.M. in International Law. Applications are now open for the LL.M. in International Law at the Graduate Institute, Geneva, for the academic year 2020-2021 starting in September 2020. The programme of 10 months offers a wide course selection, covering not only the foundations of international law, but also allowing students to concentrate in one of three different streams, namely: Protection of the Individual in International Law, International Environmental Law and Governance, and International Economic Law. The deadline to apply is 15 January 2020. Apply here.
Filed under: Announcements and Events
 

The ECtHR on Disembarkation of Rescued Refugees and Migrants at Greek Hotspots

Published on October 25, 2019        Author: 

The storm-tossed question of disembarking rescued refugees and migrants

The pressure of mass migration in the Mediterranean on EU sea-border states calls for other member states to contribute to humanitarian efforts at sea that respect the human rights of refugees and migrants. Article 98 of the United Nations Convention on the Law of the Sea (LOSC) codifies the maritime duty to rescue persons in distress and creates the complementary duty on coastal states to cooperate in operating search and rescue (SAR) services. Under the International Convention on Maritime Search and Rescue (SAR Convention) and the International Convention for the Safety of Life at Sea (SOLAS Convention) the relevant coastal state must ensure timely disembarkation of survivors at a ‘place of safety’ (see e.g. 1979 SAR Convention Annex ch. 3, 3.1.9). However, poor reception and detention conditions at Greek hotspots in the Aegean Sea raise the question of whether disembarkation at these EU assigned facilities will be in contravention of obligations under the European Convention on Human Rights (ECHR), in particular the Article 3 prohibition on inhuman and degrading treatment.

Following an overview of the current conditions at the Greek hotspots, this study considers a number of decisions of the European Court of Human Rights (ECtHR) exploring extraterritorial liability for disembarkation and the relevance of the contexts of maritime rescue and mass migration to the overall assessment of Article 3. Despite problems such as severe overcrowding, Convention states may be able to disembark at Greek hotspots without triggering Article 3 liability. Read the rest of this entry…

 

UNCITRAL and ISDS Reform: Visualising a Flexible Framework

Published on October 24, 2019        Author:  and

In UNCITRAL, states have broken through the impasse of the incrementalist and systemic reformer camps. They have all agreed that they want to pursue systemic reform, but they have different ideas about what that entails and what to prioritise. In broad terms, agreement seems to be coalescing around three main blocks of reforms: updating some of the procedural rules; enacting some sort of optional structural changes for dispute settlement; and creating a mechanism to support developing states with handling their treaties and disputes. Not every state is supportive of every proposal, but most seem open to pursuing all three in a (somewhat) simultaneous fashion.

That leaves an important question, which is starting to bubble up on the side lines of the negotiations: how might these different reforms fit together? Instead of treating the proposals as oppositional, could a flexible framework be developed that would allow multiple reforms to be developed over time in order to create a more holistic approach? What would this look like? What are the component parts or building blocks and how might they fit together?

In this blog series, we typically provide analytical frameworks for (1) understanding how the process is unfolding, including the politics of different camps and the sociology of different actors, and (2) predicting how the process is likely to evolve. In this blog, we are doing something a bit different. We are taking concerns that states have identified in the process and sketching a framework for understanding how they might be brought together. The framework we present below is not simply a descriptive synthesis of the discussions to date, but rather a way to look at the various options raised in their entirety — including how they overlap and relate to one another. Read the rest of this entry…

Filed under: EJIL Analysis
 

UNCITRAL and ISDS Reform: In Sickness and In Health

Published on October 23, 2019        Author:  and

UNCITRAL Working Group III met in Vienna last week to continue its discussions about how to reform investor-state dispute settlement (ISDS). In April 2019, the Working Group agreed that the ISDS system suffered from significant problems and required reform. In colloquial terms, the system was causing a variety of illnesses; states needed to diagnose the underlying causes and prescribe cures. This blog traces the debate dynamics as states considered different treatment plans to restore the system to health. In tomorrow’s blog, we provide a first conceptualisation of how these different treatments might be weaved together in a flexible framework.

Sickness: Causes and Cures

During Phases 1 and 2 of this process, it sometimes felt like states were complaining about having suffered from various illnesses arising from the system. These illnesses included very large awards, inconsistent decisions, frivolous cases, arbitrator conflicts and excessive fees. Different states at UNCITRAL had succumbed to different illnesses, but the general sentiment expressed was that the existing system had created unhealthy pathologies that needed treatment.

In Phase 3, states are recognising that that they are not only patients, they are also doctors. Some (powerful) states have long seen themselves as doctors, able to treat problems with available tools, while other states have either not seen themselves as doctors or not had access to the same tools. At UNCITRAL, there has been a clear shift: all states now recognise that they have individual and collective agency to reform the system. But they disagree on the best course of treatment.

Should the Working Group just treat specific illnesses? States adopting this approach favour non-structural reforms and coalesce around a multilateral instrument on procedural reforms, which they argue would provide significant and speedy fixes to the existing system. Read the rest of this entry…

Filed under: EJIL Analysis
 

Turkey, Aggression, and the Right to Life Under the ECHR: A Reaction to Professor Haque’s Post

Published on October 22, 2019        Author: 

Professor Haque yesterday published a thought-provoking piece on this blog arguing that the Turkish incursion against Kurdish forces in Syria, beyond being a violation of the UN Charter, also amounts to a violation of the right to life under the ECHR. His reasoning, which is sound, is based on the Human Rights Committee’s rather controversial new General Comment 36 on the right to life under the ICCPR, where the Committee concludes that States Parties to the Covenant engaging in acts of aggression resulting in deaths violate ipso facto Article 6 (for its part, the HCRttee itself draws on the opinion of academics such as William Schabas who originally developed the argument).

I do not disagree with Professor Haque’s logic, which is, like that of the HRCttee, internally sound. However, I disagree with the exceptionalism which often seems to characterize attempts to include jus ad bellum in the lawfulness test for arbitrary deprivation of life– and, respectfully, Professor Haque’s piece suffers from that same exceptionalism.

The classical view of permissible violence in armed conflicts, based on the long-standing distinction between jus in bello and jus ad bellum, is actually a coherent and credible legal position – one that has the additional advantage of being the mainstream interpretation. It is entirely plausible to maintain that the UN Charter does not mix very well with human rights or humanitarian law instruments. The whole structure of IHL has been built on the premise of its separation from the lawfulness of resorting to force, and the ICRC itself continues to strongly defend this position.

But the emerging understanding of the right to life in light of jus ad bellum is also a coherent, well-structured and convincing interpretation of treaty law, from the point of view of human rights law taken in relative isolation. The fact that this interpretation has also been authoritatively endorsed by a treaty body gives it an aura of credibility that few “progressive” interpretations raised in doctrine can usually aspire to. But the mere fact that a particular interpretation of treaty law makes sense does not mean that it should actually be made.

Read the rest of this entry…

 

Turkey, Aggression, and the Right to Life Under the ECHR

Published on October 21, 2019        Author: 

Turkey’s latest invasion of Syria violates the prohibition of interstate armed force. It cannot be justified by Turkey’s right of self-defense (see here and here). What follows? Among other things, each and every person killed by Turkish forces and agents is killed in violation of her human right to life. Every civilian killed in violation of international humanitarian law. Every combatant or fighter killed without violation of international humanitarian law. Everyone. Let me explain.

The International Covenant on Civil and Political Rights provides that “No one shall be arbitrarily deprived of his life.” According to the Human Rights Committee’s General Comment No. 36 on the right to life, “[d]eprivation of life is, as a rule, arbitrary if it is inconsistent with international law.” It follows that “States parties [to the Covenant] engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant.” This much is well known.

The European Convention on Human Rights provides that “[n]o one shall be deprived of his life intentionally” except in cases of capital punishment or when absolutely necessary to defend a person from unlawful violence; to effect a lawful arrest or prevent the escape of a person lawfully detained; or to quell a riot or insurrection. It follows that States parties to the Convention engaged in acts of aggression as defined in international law, resulting in intentional deprivation of life, violate ipso facto article 2 of the Convention. I am told this is less well known. Read the rest of this entry…

 

Announcements: Lecture in Immigration Law on Migration as Decolonization; The Changing Character of International Dispute Settlement; 2020 NILOS Moot Competition; Vacancy at The Fletcher School of Law and Diplomacy at Tufts University; UN Audiovisual Library of International Law; Three Fellowships with the Berlin Potsdam Research Group

Published on October 20, 2019        Author: 

1. Annual Lecture of the LLM in Immigration Law on ‘Migration as Decolonization’. The Centre for European and International Legal Affairs (CEILA) and the School of Law are delighted to host the Annual Lecture of the LLM in Immigration Law on ‘Migration as Decolonization’, with Professor E. Tendayi Achiume (UCLA School of Law), UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance. The lecture will take place on Tuesday, 5 November, 6pm – 8pm at Lecture Theatre, Arts Two, Queen Mary University of London. The event is free of charge, but registration is required.

2. The Changing Character of International Dispute Settlement. The Sheffield Centre for International and European Law at the University of Sheffield, with the support of the Society of Legal Scholars, is hosting a one-day conference with leading academics and practitioners on 6 December 2019. The conference takes stock of the expansion of the system of international dispute settlement (IDS) and the risks of fragmentation stemming from the multiplication of IDS institutions with overlapping competences. It explores opportunities for the development of IDS in new fields such as cyber law and space law. In the face of the resurgence of isolationism and protectionism, it also questions whether existing IDS mechanisms have the legitimacy to deal with issues involving public interests, such as health, environment, and human rights. For the full programme and registration, please see here

3. 2020 NILOS Moot Competition. The Netherlands Institute for the Law of the Sea (NILOS) is very happy to announce that the 2020 Case for the NILOS Moot Competition is now available online.  The deadline for team registration is 15 November 2019. The registration form will soon be available. The schedule of the 2020 competition and a full report of the 2019 Inaugural edition are also available. Please contact here if you have any further question. The event will take place in Utrecht in May 2020.

4. Vacancy at The Fletcher School of Law and Diplomacy at Tufts University. The Fletcher School of Law and Diplomacy at Tufts University seeks to fill a full-time faculty position in international human rights law at the assistant professor or associate professor level.  Full details available here. Closes 30 November 2019 at 11:59 PM Eastern Time (GMT-4 hours). Read the rest of this entry…

Filed under: Announcements and Events